BARUH: Thoughtless crimes still require attention

Opinion Column: Vox Signata

Unintended consequences are almost a trademark of government activity, and the criminal justice system is no exception. Mandatory minimums, intended as a potent weapon in the War on Drugs, have unnecessarily destroyed lives and crowded prisons. Court proceedings, designed to give everyone their say, have become rote and turn defendants and victims alike into mere blurs and docket numbers. And clearly guilty criminals can walk away with no punishment through an arcane rule or the maddening vagaries of a jury.

Yet another area where unintended consequences are a cause for concern is criminal intent. Generally, a person must have some level of intention to be convicted of a crime, and there are various levels of intent for different laws. The highest level of intent, sometimes called "mens rea" (Latin for “guilty mind”), requires a knowing and willful violation of the law to be convicted. The lowest level, or “strict liability,” requires only that a prohibited act be done to be found guilty.

Ideally, the law indicates what level of intent is necessary for conviction. But what happens when there’s no specified level? What should be the default level of intent needed for conviction?

There’s no argument that someone who exhibits mens rea when committing a crime should be convicted. And we can probably form some consensus that a person who knew the law but didn’t intend to break it should also be convicted. Yes, they didn’t think that they were breaking the law, but making no distinction between good-faith errors and unreasonable assumptions encourages greater caution.

So knowing the law is enough to be held accountable. But should someone who didn’t know the law also be found guilty? Currently, the answer is yes. In Cheek v. United States, 498 U.S. 192, (1991), the Supreme Court affirmed that "the general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system."

There are two good reasons for this rule. First, we do not want to incentivize ignorance of the law (if I’m innocent when I don’t know the law, why should I know the law?). Rather, we want people to be aware of, and on the lookout for new laws and using strict liability as a standard gives people an incentive to stay informed. Second, some laws typically apply to businesses (e.g., environmental or food-safety laws), and forcing the state to prove that the owners or operators of these businesses knew those laws would weaken enforcement efforts.

But this rationale makes one important assumption: The ordinary American is able to keep track of what activities are criminal acts. This is no longer the case. When the first criminal codes were passed, there were just over 20 different crimes, including no-brainers like murder and theft. Now, there are well over 4,000 different crimes scattered throughout the statutory code of the federal government. Not all of these laws set the bar at strict liability, but many do, and it is unfair to maintain that standard when there are so many laws that can be violated.

This might sound like an exaggeration of reality. Surely most Americans go through their lives without even getting close to violating many of these laws. I won’t deny that there is a limited scope to this problem. But much of the protection afforded to defendants in criminal cases is to ensure that not one innocent person is unjustly punished, even if it means that the guilty sometimes walk free. To allow even one person to be convicted of a crime they did not intend to commit is contrary to the American notion of justice. And with thousands of laws out there, the idea that an innocent American can be convicted of a crime they had no intention of committing becomes more than an academic consideration.

What can we do to protect ourselves from wrongful convictions, but still keep our laws enforceable? One step in the right direction is to get more data about the problem. We can see that "law x" is producing unreasonable convictions and raise the level of intent as necessary, but only if someone does the research. Another solution is to make sure that all laws have some specified level of intent. Drafting a law is a messy and complicated process, and it’s possible that lawmakers simply forget to specify the needed level of intent. Mandating that legislators specify if a law requires mens rea, strict liability or something in-between will go a long way towards preventing poorly written laws and creating a more just system.

Yosef Baruh is a School of Arts and Sciences junior majoring in economics and minoring in computer science. His column, "Vox Signata," runs on alternate Mondays.

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